Daily Comment on News and Issues of Interest to Michigan Lawyers

February 2010

02/28/2010

Canada's Financial Post has a story lamenting a series of developments said to be clogging commerce at the U.S.-Canadian borders. The story celebrates the fact that Canada and the United States had reached an agreement that allows Canadian
companies to participate in U.S. infrastructure projects financed under
the American Recovery and Reinvestment Act, but points to a series of U.S. trade decisions unfavorable to Canadian commerce. According to the FP, the changes threaten to erode the perception of Canada as an increasingly diversified economy
with unimpeded access to a North American market of 400 million people. But lawyers take note: the FP cites a recent growth in international law practice in Canada, which it attributes to the "thickening" border.

The Blog of Legal Times reports that the U.S. Department of Justice has asked a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit to overrule a ruling denying the DOJ access to certain tax-related documents from Dow Chemical to Deloitte Touche over which Dow has asserted privilege in a civil tax suit in federal district court in Louisiana. The DOJ maintains that the work product privilege doesn't apply because the documents in question were prepared during the ordinary course of business, not for litigation. Chief Judge David Sentelle, a member of the panel, asked "What you want here is the attorney's opinion. Isn't that precisely what the attorney work product privilege is designed to protect -- the attorney's opinion?" Both the DOJ and Dow stated that they were not opposed to having the case returned to the trial court to allow the trial judge to inspect the disputed records in camera.

According to the chairman of the House Oversight and Government Reform Committee, documents turned over to the committee by a former in-house lawyer for Toyota show that Toyota deliberately withheld records in rollover litigation and other cases, says an online story in the Wall Street Journal (subscription required). A Toyota spokesperson said Toyota was confident it had acted appropriately with respect to product liability litigation.

SBM Blog honors to the first reader to identify a meaningful connection, within six degrees of separation, between a member of the State Bar of Michigan and the valiant Olympic silver medalist, Michigan native, and MSU hockey legend, goalie Ryan Miller.

The Holland Sentinel reports that Carl Gabrielse, former deputy prosecutor for the
city of Holland, has pled guilty to third-degree criminal sexual conduct and misconduct in office, admitting that he made a plea deal with a 21-year-old female defendant
in exchange for sex in a courthouse bathroom. If he successfully completes the terms of his sentence, he
will be allowed to change his plea and admit to a lesser felony that
does not require him to register as a sex offender. His license has been suspended until at least the commencement of disciplinary proceedings.

According to the Blog of Legal Times the FTC has filed a notice of appeal in the D.C. Circuit Court of Appeals of an October decision (PDF) upholding the ABA's position that the Red Flags Rule doesn't apply to lawyers. The rule requires businesses to put warning systems in place to spot problems of potential identity theft. Despite the fact that the act does not mention lawyers and was widely understood to apply to the financial sector, the FTC has asserted that the rule applies to lawyers because lawyers qualify as "creditors" under the Fair and Accurate Credit Transactions Act. A "creditor" is any party that regularly permits deferred payments for goods and services, and, says the FTC, payments to lawyers are typically deferred until the completion of work. Not so said the ABA's brief. "A lawyer does not regularly extend' credit merely by providing services to a client in advance of billing for those services. In fact, state rules of professional conduct generally prohibit lawyers from receiving compensation before services are rendered."

02/26/2010

Wednesday's post notifying readers that the Michigan Senate had just passed a bill stripping health care from future judges' retirement benefits prompted this response from a member:

I am not opposed to elected officials losing their retirement health care benefits. Michigan is in bad shape and taxpayers just cannot afford to provide such benefits to elected officials when they themselves are struggling to provide food and shelter for their families.

To which another member responded: "Or make their program available to everyone...."

The general lament is familiar; we've certainly heard it from mothers and fathers in practice in Michigan. But these paragraphs particularly caught our eye:

Sisterly solidarity? I don’t think so.

Many senior women remember the tough time they had battling through the glass ceiling and see no reason to make it easier for today’s mums. It’s “character building”, they say. Even Generation X roll their eyes and moan about the “extra cover” they must do while the mums leave to collect their children. What about respect for life choices? Do mums begrudge the extra effort covering their child-free colleagues’ unproductive mornings nursing hangovers or afternoons commiserating about bad boyfriends over chocolate cake?

There’s gender bias too. When a female leaves the office to collect her child there are sideways glances - she puts her kids before her career and, more importantly, the firm. When a male does the same, people smile - how sweet. And how modern.